In what would be a precedent-setting case, the state's high court was asked Friday to decide, in essence, whether someone who smokes marijuana -- even legally -- can ever drive in this state.
In a petition to the Arizona Supreme Court, the attorney for Hrach Shilgevorkyan does not deny that his client had at some point inhaled prior to his December 2010 arrest by a Maricopa County sheriff's deputy who had pulled him over for speeding. That was confirmed by a blood test which showed the evidence of Carboxy-THC, a metabolite of the drug.
But Michael Alarid III said this particular metabolite can remain in someone's system for up to a month after marijuana has been used. More to the point, he claims it is "inactive.''
And Alarid pointed out that the blood test found no evidence of tetrahyrocannabinol, or THC, the principal psychoactive ingredient in marijuana, as well as Hydroxy-THC, which is what THC breaks down into. State law clearly makes the presence of either chemical presumptive evidence of impairment.
Hanging in the balance is whether marijuana users in Arizona can be convicted of driving under the influence for some activity that has occurred weeks before.
The issue takes on even more importance because Arizona allows those with a doctor's recommendation to legally use the drug. While that does not grant anyone permission to drive while impaired, a Supreme Court ruling against Alarid could effectively preclude any of the state's nearly 38,000 registered medical marijuana users from driving at any point given the long-term presence of Carboxy-THC in their blood.
Alarid called that result "absurd,'' given the lack of evidence of impairment.
Central to the debate is the law the makes it illegal to drive where there is any drug defined in the criminal code or its metabolite in the person's body.
THC is on that list. And Hydroxy-THC is a metabolite.
Prosecutors argued the law includes all possible metabolites of THC. But a justice of the peace tossed the charges, a decision upheld by Maricopa County Superior Court Commissioner Myra Harris.
"This court has not been persuaded that the Legislature necessarily intended to include all possible derivatives of drugs -- particularly inactive end products that no longer affect an individual -- within the statutory scheme of controlling impaired drivers,'' Harris wrote. "Where, as here, there is no showing of a drug or metabolite that causes impairment, the driver should not be subjected to criminal penalties that can include up to 10 consecutive days in jail and assessments of over $1,000.''
Last month, however, the state Court of Appeals decided otherwise.
Judge Michael Brown, writing for the panel, said the laws on impaired driving "must be interpreted broadly to appropriately effectuate the legislative purpose and intent underpinning the statutory language.''
That leaves the question in the hands of the high court.
Alarid said the state's own expert conceded that Carboxy-THC does not cause impairment. He said it would be "absurd'' to allow someone testing positive for this chemical to be convicted of driving under the influence.
But Maricopa County Attorney Bill Montgomery, whose office is prosecuting the case, said there is no good way to determine whether someone is "impaired'' because of marijuana use.
"We don't know at what rate most of the population would be able to break down marijuana to when it's in its non-psychoactive elements,'' he said. And that, Montgomery said, makes it legally acceptable for the Legislature to decide that the proper standard should be zero.
Alarid told the justices that the appellate court ruling is wrong because it relied in part on a 1994 ruling which concluded the Legislature was reasonable in determining there is no level of "illicit drug use'' which can be acceptable when someone in driving.
But since that time, Alarid pointed out, Arizona and 17 other states have adopted medical marijuana laws. "Thus, marijuana is no longer a completely proscribed illicit drug,'' he wrote.
In her ruling, Harris noted the changing legal scene. And she pointed out that the U.S. Supreme Court has ruled there is a "constitutional right to travel.''
Harris said if Arizona can determine that anyone with Carboxy-THC in the blood can be arrested for driving, that could effectively impair that constitutional right.
"There's a right to travel,'' Montgomery acknowledged. "But no court has ever found that there is a right to a driver's license.''
Anyway, he said, there is an argument to be made that anyone who has a medical need for marijuana probably should not be driving in the first place.
He said someone with chronic pain -- the most frequent reason cited by those seeking permission to use the drug -- probably would need to be using some other prescribed drug. And he said most of those have warnings against using them while driving or operating machinery.
Alarid has one other legal argument in his bid to allow those with Carboxy-THC to drive without nfear of arrest.
He said the law makes it illegal to drive with THC and "its metabolite'' in the blood. That, he said, means a singular metabolite, in this case, Hydroxy-THC.
"Therefore, based on the plain meaning of the statute, (it) does not prohibit driving with Carboxy-THC in the body,'' he said in his legal petition to the Supreme Court.
The justices have not decided whether to accept the case.